Thursday, 18 May 2017

New Developments in the context of the European Citizens’ Initiative: General Court rules on ‘Stop TTIP’

Anastasia Karatzia, Assistant
Professor in EU Law, Erasmus University Rotterdam and currently Visiting
Research Fellow at the School of Law and Social Justice, University of
Liverpool

Introduction

A
few months ago, we saw the first annulment by the EU’s General
Court of a Commission Decision refusing registration of a proposed European
Citizens’ Initiative (ECI), in the case of Minority
SafePack.
Last week, there was an even bigger development in the case law of the General
Court regarding the interpretation of the ECI’s legal admissibility test: in
the Stop
TTIPcase[1]
the Court annulled another Commission’s Decision, this time not on a procedural
ground such as the one in Minority
SafePack, but on the substantive ground that the Commission breached
Article 11(4) TEU (which sets out the power to adopt the ECI law), and Articles
2(1) and 4(2)(b) of the ECI
Regulation, which sets out one of the criteria for the legal admissibility test.

In
Stop TTIP, the General Court clarified
a matter of contention between ECI organisers / stakeholders and the Commission
viz. the scope of an ECI and, more specifically, the way in which the
Commission had limited the acceptable subject-matters for the purposes of
registering an ECI. These limitations were stipulated in the Commission’s
letter of response regarding the refusal of registration for the proposed ‘Stop
TTIP’Initiative, which was submitted
for registration in July 2014. The Initiative proposed to cease the
negotiations for the Transatlantic
Trade and Investment Partnership agreement (TTIP) between the EU and US,
and to prevent the conclusion of the Comprehensive
Economic and Trade Agreement (CETA) between the EU and Canada.

In
more detail, ‘Stop TTIP’ had invited the Commission to ask the Council to
repeal its decision to authorise the opening of the TTIP negotiations under
Article 218(2) TFEU (which is the legal rule on the process of the EU
negotiating treaties). It also asked the Commission to submit a proposal for a
Council decision not to conclude CETA. In September 2014, the Commission
replied to the organisers that both their proposals had been rejected on the
basis of Article 4(2)(b) in conjunction with Article 2(1) of the ECI
Regulation, because they fell outside the framework of the Commission’s powers
to submit a proposal for a legal act of the Union for the purpose of
implementing the Treaties.

The Commission’s reply revealed two limitations on the
scope of the ECI.[2]
First, the Commission stipulated that an ECI cannot invite the Commission to adopt
preparatory acts. The Commission argued in its reply that its proposals to the
Council under Article 218 TFEU to authorise the opening of negotiations for
international agreements were not proposals for legal acts. The Council Decisions
authorising the opening of negotiations for an international agreement are
preparatory acts that produce legal effects only between the EU and its Member
States and between the EU institutions. Therefore, the Commission’s relevant
proposals to the Council lacked legal effect against third parties.
Accordingly, the position of the Commission was that ‘Stop TTIP’ was not
proposing any legal acts for the purpose of implementing the Treaties and could
not be registered. Second, the Commission declared that an ECI cannot invite
the Commission to propose a decision not
to adopt a legal act such as a proposal not to conclude CETA, or to refrain from
proposing a legal act. Such a proposal ‘would not deploy any autonomous legal
effect beyond the fact of the legal act at issue not being adopted.’ The
negative nature of the ‘Stop TTIP’ proposals, together with the fact that it
arguably did not propose ‘legal acts’ as required by Article 11(4) and Article
2(1) ECI Regulation, led to the refusal by the Commission to register it. Notably,
the limitations imposed by the Commission are not clearly indicated in the ECI
Regulation. Instead, they resulted from the Commission’s own interpretation of
the ECI’s legal framework.

After the Commission’s rejection, the ‘Stop TTIP’ organisers
followed a twofold course of action: they brought a case before the
EU General Court, which is the first instance part of the Court of Justice of
the European Union (CJEU), contesting the Commission’s decision to refuse
registration of their Initiative, and they started what they named ‘a
self-organised ECI’, which was a campaign to collect signatures outside the
contours of the ECI’s legal framework. The campaign went on to collect more than
3 million signatures, which the organisers handed over to the Commission in October
2015.

It
becomes apparent from the above overview that the significance of the General
Court’s judgment in the Stop TTIP case
does not derive only from the question of whether the specific Initiative was
wrongly refused registration, but also from the question of whether the ECI’s
scope to propose EU action was rightly limited by the Commission beyond what is
explicitly written in the ECI Regulation. In this sense, the General Court’s
judgment is a milestone both for the ECI organisers themselves and for the
functioning of the ECI as a mechanism for citizens’ participation. This short
commentary will touch upon the key aspects of the judgment.

The arguments of
the parties

The
applicants in the case made two main arguments. They claimed that the Commission
(i) breached Article 11(4) TEU and Article 4(2)(b) of the ECI Regulation, and
(ii) breached the principle of equal treatment (Article 20 of the EU Charter of
Fundamental Rights) because it had registered in the past the ‘Swissout’ Initiative which had very similar
objectives with ‘Stop TTIP’. The judgment focused on the first ground of review
and did not deal at all with the second.

In
support of their claim, the applicants brought forward three main arguments.
Firstly, they argued that the Council’s Decisions authorising the conclusion of
an international agreement under Article Article 218(5) TFEU is not a
preparatory act. With regard to the Initiative proposals concerning the CETA
negotiations, which were already taking place at the time of the request for registration,
a Decision by the Council to the Commission not to conclude CETA would not be a
preparatory act but an act with legally binding effects. Regarding the
Initiative proposals concerning a proposal by the Commission to the Council to
repeal the Decision authorising the negotiations for TTIP, such a Decision
would result to the termination of the negotiations, and would have been final
and legally binding. In any case, the scope of an ECI should not be limited to proposing
legal acts with definitive, legally binding effects vis-à-vis third parties.
Neither the background to the ECI Regulation, nor the ECI’s overall regulatory
framework call for such a restrictive reading of the term ‘legal acts’ (para
12).

Secondly,
the applicants argued against the Commission’s position that an ECI cannot
concern acts that deploy legal effects only between the institutions concerned.
For the purposes of the ECI, the term ‘legal act’ should be defined broadly in
light of Articles 288 – 292 TFEU, and should include Commission’s Decisions
that are outside the ordinary legislative process (para 13).

Thirdly,
the applicants referred to the potentially ‘destructive effect’ of the proposed
Initiative on the negotiations for TTIP and CETA. This alleged ‘destructive
effect’ cannot be put forward as a ground for refusal under the rationale that
the Initiative’s proposals did not have the purpose of implementing the
Treaties. In the view of the applicants, ‘the right of citizens to participate
in the democratic life of the Union includes the possibility of citizens acting
with the purpose of modifying, reforming, ratifying, or asking for a partial or
total annulment of EU law’ (para 14).

The
Commission’s main counter-arguments supported the position expressed in its
2014 letter of response to the organisers. The Commission reiterated its
position that the Council Decision to approve the opening of negotiations for
an international agreement is only preparatory because it only produces legal
effects between the two EU institutions. Based on a ‘systematic and
teleological interpretation’ of Articles 2(1) and 4(2)(b) of the ECI
Regulation, it can be concluded that an act of preparatory character falls
outside the definition of a ‘legal act’ for the purposes of registering an ECI
(para 19). This argument was further supported by the assertion that the notion
of democratic participation in the EU refers to the participation of citizens
only in matters which (potentially) fall under their legal sphere. Instead, the
Council and the Commission enjoy sufficient democratic legitimacy to be the
ones to adopt acts that affect the relationship between the EU institutions (para
20).

In
addition, the Commission repeated its argument that an ECI cannot ask it not to
propose a particular legal act or to propose a decision for the non-adoption of
a legal act. Interestingly, it referred to Article 10(1)(c) of the ECI
Regulation which deals with the final stage of the ECI process, whereby the
Commission is obliged to issue a Communication setting out ‘the action it
intends to take, if any’. From this, the Commission concluded that only ECIs
that aim to the adoption of a legal act or to the repeal of an existing legal
act can be registered. Otherwise, a declaration by the Commission that, as a
response to an ECI, it does not aim to propose the adoption of a legal act
would have excessively limited the Commission’s monopoly of legislative
initiative. According to this argument, an ECI asking for the Council to repeal
a Decision opening the negotiations or asking it not to conclude an agreement,
would have been an ‘unacceptable interference’ in an on-going legislative
procedure (para 21).

The judgment of the
General Court

The
General Court began with a reference to the ECI’s legal framework. It mentioned
Article 11(4) TEU, and the ECI Regulation, specifically Article 2(1)
(definition of the ECI), Article 4(2)(b) (the legal admissibility test), and
Article 10(1)(c) (the obligation of the Commission to respond to a successfully
submitted ECI) (paras 23-27). It then explained that the ECI organisers had not
asked the Commission not to submit a
proposal to the Council for the signing and conclusion of TTIP and CETA.
Instead, the organisers asked the Commission to submit to the Council two
proposals: (a) a proposal to recall the authorisation for the opening of
negotiations for TTIP; and (b) a proposal not to authorise the signing of TTIP
and CETA and thus not to conclude these agreements (para 28). As such, the
Court also clarified that the current case did not contest the competence of
the Commission to negotiate TTIP and CETA. Instead, it was a challenge to the
reasons given by the Commission for the refusal of the proposal (para 29).

Subsequently,
the Court specified that the Commission has the competence to act in the way
asked by the applicants, i.e. to submit to the Council the two proposals (paras
30-32), and went on to deal with the question of whether these actions can be
excluded from an ECI either because they are preparatory acts, or because they
are not necessary for the implementation of the Treaty, as the Commission had
argued (para 33).

On
the definition of a ‘legal act’ for the purposes of an ECI, the Court sided
with the applicants: the notion of ‘legal act’ in Article 11(4) TEU, and
Articles 2(1) and 4(2)(b) of the ECI Regulation cannot be interpreted to
include only final EU acts with legally binding effects vis-à-vis third parties.
The Commission’s position is not justified by the letter of the law or by the
overall purpose of these provisions. This was all the more so since the actions
in question, which concerned the conclusion of an international agreement, fit
squarely into the definition of a ‘Decision’ in accordance with Article 288(4)
TFEU, as clarified in Case 114/12 Commission v Council.
Besides, a broad interpretation of ‘legal act’ is mandated by the democratic
principle on which the EU is founded (Article 2 TEU) (paras 35-37).

In
addition, the Court rejected the Commission’s argument that the Initiative
could not have been registered because the suggested actions did not aim to the
implementation of the Treaties and thus were destructive to the law-making
process. According to the Court, there is nothing in Article 11(4) TEU or
Article 2(1) ECI Regulation indicating that citizens cannot act through an ECI
in order to prevent the adoption of a legal act. Furthermore, the conclusion of
TTIP and CETA would have modified the EU legal order. As such, by advocating to
stop the two agreements, the ‘Stop TTIP’ organisers were actually acting for
the implementation of the current Treaties (para 41). In any case, Initiatives
that propose the non-signature and non-conclusion of an international agreement
produce legal effects since they may prohibit the modification of EU law
intended by the said agreement (para 43).

Lastly,
even though the Court did not explicitly address the applicants’ second claim on
the unequal treatment of their Initiative in comparison with the Swissout
Initiative, it did address the paradoxical situation that resulted from the
treatment of the two Initiatives. This paradox resulted from the fact that,
according to the Commission’s interpretation, an ECI could propose the
termination of an existing international agreement but not the termination of
the negotiations towards such agreement. The Court took a citizen-friendly
approach in saying that citizens should not be obliged to wait until an
agreement is concluded before they can contest the conclusion of the agreement
through an ECI (para 44). In this sense, the Court has put proposals asking for
the termination of negotiations on a par with those asking for the opening of
negotiations, and has interpreted the scope of the ECI as being capable of
encompassing both type of proposals.

Commentary

I
had commented on an earlier publication that the ‘Stop TTIP’ case was a good
opportunity for the CJEU to step in and point out the correct interpretation of
Article 4(2)(b) of the ECI Regulation regarding proposals concerning the
conclusion of international agreements. It would seem that the General Court
has seized that opportunity. The judgment widens the scope of the ECI by
completely overruling the Commission’s interpretation of legal admissibility in
the particular context. In this sense, the judgment is a positive and
constructive development not only for the ECI organisers, who had been waiting for
it for almost three years, but also for those interested in starting an ECI
campaign on a topic related to an international agreement, as well as for ECI
stakeholders who have been calling for a more flexible legal admissibility
test.

What
makes the case especially interesting is the extensive reliance of the Court on
the nature of the ECI as a democratic participation mechanism that intends to
foster democratic dialogue and give citizens the opportunity to address the
Commission in order to request action. For instance, the Court implicitly
rejected the Commission’s first argument that a potential breach of Article
11(4) TEU was irrelevant and that the only relevant legal text should be the
ECI Regulation which is based on Article 24 TFEU and stipulates the details of
the legal admissibility test. Both the Court’s interpretation of ‘legal acts’
for the purposes of registering an ECI (paras 35-36) and that of ‘implementing
the Treaties’ (para 41) relies on a joint reading of Article 11(4) TEU and the
relevant provisions of the ECI Regulation. The Court even considered the ECI in
light of the fundamental principle of democracy as included in the Preamble of
the Treaty and the EU Charter of Fundamental Rights in order to broaden the
scope of the right to bring an ECI beyond the Commission’s delineation (para
37).

In
addition, the Court has held a more restrictive view than the Commission on
what is an ‘unacceptable interference with the adoption of a legal act’ when it
comes to an ECI. According to the Court, the very notion of citizens’
participation in the democratic life of the EU - of which the ECI is part -
includes the possibility to ask for the modification, as well as the partial or
total repeal of legal acts. A true form of citizens’ participation in the
democratic life of the EU should give the opportunity to citizens to obstruct,
or interfere with, the adoption of a legal act. Since it is entirely up to the
Commission to decide the follow-up of a successfully submitted ECI after the
public hearing of that ECI (Article 10 ECI Regulation), it could not be said
that the registration of ‘Stop TTIP’ would have been an unacceptable
interference with the legislative process or that it would have breached the
principle of institutional balance (paras 45-46). It would seem, therefore,
that the Court has taken into consideration the overall discretion of the
Commission at the end of the ECI process when interpreting the legal
admissibility test, which takes place at the beginning.

Given
that this is only the second time that the General Court annuls a Commission’s
decision to reject a proposed ECI, the answer to the question ‘what happens now?’
is not entirely clear. After the Minority
SafePack case, the Commission registered the part of the ECI that it
considered admissible. As a response to the judgment, the Commission also
issued a Decision elaborating on its reasons for
only registering part of the ECI. The situation this time around is more complicated.
As mentioned above, the ‘Stop TTIP’ organisers went ahead with collecting
signatures despite the refusal of their ECI. Impressively, within one year
(October 2014 – October 2015) the campaign collected around 3.3 million signatures, more than any of the formally
registered ECIs. Subsequently, the organisers stated in their website: ‘we demand that the European
Commission treat us like a regular ECI which means we expect an official
response from the European Commission and a public hearing in the European
Parliament.’ The Commission is now faced with interesting dilemmas: Will it
register the ECI or pursue the case further by appealing before the European
Court of Justice? If it does register the ECI, will it accept the collected
signatures or will it oblige the organisers to start over? In its plans to propose revisions
to the ECI in the near future, will the Commission try to overturn the new judgment
– or accept and fully incorporate it?

The
factor of time also makes the upcoming Commission’s response to this case
particularly noteworthy. Between 2014 and 2017 we have seen major developments
with regard to TTIP and CETA, including 15 negotiating rounds on TTIP up to October 2016 and a
proposal in July 2016 by the Commission
to the Council for the signature and conclusion of CETA. More recently, the European Parliament voted in favour of CETA after
Wallonia nearly blocked the agreement. All of these developments are in fact
the exact opposite of what the ‘Stop TTIP’ organisers were requesting in their
proposal, which indicates the importance of momentum to an ECI’s overall
success.

On
a final note, I wonder what the implications of the General Court’s judgment
are with regard to future ECIs relating to Brexit. It would seem that the
judgment has opened the door to ECI proposals objecting to a possible future
agreement on the UK-EU relationship, assuming that such an agreement will be eventually
negotiated on the basis of Article 207 and 218 TFEU. Of course we have a long
way to go before this issue even becomes relevant – if it ever becomes relevant
at all. However, such a scenario would certainly open a new dimension to
citizens’ participation and voice in the Brexit process. Meanwhile, let’s see
how the Commission will respond to Stop
TTIP and how the organisers will continue their campaign.

Photo
credit: Stop TTIP

Barnard
& Peers: chapter 24

[1] The judgment is not available in
English yet. This commentary is based on my own translation from the Greek
version and any translation errors are mine.